Plaintiff Brandonlyn Nunley (Nunley), individually and as parent of TJN, a minor, commenced this lawsuit on February 28, 2014. She filed her pro se complaint against Officer Nicholas Erdmann (Erdmann), Iowa Highway Patrol[1] and John and Jane Does 1-10 on April 24, 2014, asserting the following claims under 42 U.S.C. § 1983:

On June 6, 2014, all defendants filed a motion (Doc. No. 8) to dismiss in which they request dismissal of:

a. All claims brought on behalf of plaintiff's minor child

b. All claims brought against the state of Iowa and all of its instrumentalities

c. Counts VIII through XII

d. Counts I, II, IV, V, VI and VII

Doc. No. 8.[2] Nunley filed an initial resistance (Doc. No. 15) on August, 11, 2014, and then filed a motion (Doc. No. 16) for additional time to file a supplemental resistance. Defendants filed a reply (Doc. No. 17) to the initial resistance on August 18, 2014.

On August 21, 2014, I granted (Doc. No. 20) Nunley's motion for additional time to file a supplemental resistance. Instead of filing a supplemental resistance, however, she filed an Amended Complaint and Jury Demand (Doc. No. 21) without filing a motion for leave to amend. Because Nunley did not obtain leave to amend, I entered an order (Doc. No. 22) on September 23, 2014, striking the Amended Complaint and Jury Demand while advising Nunley that she could re-submit the proposed amendment with an appropriate motion. She has not done so.

The Honorable Mark W. Bennett has referred the defendant's motion to dismiss to me for the preparation of a report and recommended disposition. No party has requested oral argument and, in any event, I find that oral argument is not necessary. See N.D. Ia. L.R. 7(c). The motion is now fully submitted.

II. NUNLEY'S FACTUAL ALLEGATIONS

Nunley alleges that on September 16, 2012, she was driving on a public highway in Iowa with her 2-year-old son, TJN, when Erdmann stopped her - apparently because he believed she was not wearing a seatbelt. Nunley makes no allegation as to whether or not she was, in fact, wearing a seat belt. In any event, she alleges that Erdmann approached the vehicle on the passenger side and asked for Nunley's driver's license, insurance and vehicle registration. Nunley provided the registration for the vehicle and explained she was borrowing it from a friend. She stated she had forgotten her driver's license, but provided her name and birth date, hoping that Erdmann could look it up in his vehicle. She also indicated she was disabled.

Erdmann moved to the driver's side of the vehicle and asked Nunley to contact the vehicle's owner on her cell phone. Nunley proceeded to call her friend. When the friend picked up, Erdmann reached through the window and grabbed the cell phone out of Nunley's hand. Nunley was shocked and upset and told Erdmann she did not think his actions were justified. Erdmann then asked for the keys to the vehicle. Nunley began to partially close the window to shield herself from further physical contact with Erdmann when he reached through the window, unlocked the door and attempted to take the keys. This resulted in further physical contact with Nunley. While reaching through the window, Erdmann opened the door and Nunley got out to retrieve her phone. Erdmann wrapped his arm around Nunley's head and right shoulder and said "come here, come here." He threw her face down on the gravel, placed his lower legs and knees on her head and forced her head into the ground.

Erdmann took a prolonged time to handcuff Nunley and place her in a backup law enforcement vehicle. Nunley alleges her face was bleeding profusely and Erdmann deliberately avoided the dash camera on his vehicle. Erdmann was not hurt or physically harmed during the incident.

Once other officers arrived, Erdmann admitted he had checked the computer in his vehicle and determined Nunley had a valid driver's license. Another officer indicated that Nunley was known in the area and had been involved in a serious car accident which caused her head trauma and poor memory. TJN had been left unsupervised in his child seat with the driver's door open until Erdmann contacted Nunley's father to come pick up TJN.

Nunley was transported to the county jail and incarcerated overnight. The next morning, a jail officer observed Nunley and commented on her bruising. Nunley was charged with "Interference with Official Acts Causing Injury."[3] She was required to attend two court hearings. The Interference with Official Acts charge was dismissed with prejudice because, according to Nunley, "the charge was baseless and could not be justified under any reasonable interpretation of the events."[4]

Nunley alleges she suffered "serious, deep and extensive abrasions to her eyebrow, upper cheek and lower cheek" which are documented by photographs taken shortly after the incident. Doc. No. 4 at 7. She also alleges she suffered "extensive contusions over the rest of her body including her upper left arm between her elbow and shoulder." Id. Nunley makes other allegations which will be addressed, as necessary, during the discussion of her specific claims.

III. APPLICABLE STANDARDS

The Federal Rules of Civil Procedure authorize a pre-answer motion to dismiss for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). The Supreme Court has provided the following guidance in considering whether a pleading properly states a claim:

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." As the Court held in [ Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)], the pleading standard Rule 8 announces does not require "detailed factual allegations, " but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. Id., at 555, 127 S.Ct. 1955 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." 550 U.S. at 555 , 127 S.Ct. 1955. Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement." Id., at 557, 127 S.Ct. 1955.

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Id., at 570, 127 S.Ct. 1955. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id., at 556, 127 S.Ct. 1955. The plausibility standard is not akin to a "probability requirement, " but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of entitlement to relief.'" Id., at 557, 127 S.Ct. 1955 (brackets omitted).

In deciding a motion brought pursuant to Rule 12(b)(6), the court may consider certain materials outside the pleadings, including (a) "the materials that are necessarily embraced by the pleadings and exhibits attached to the complaint, '" Whitney, 700 F.3d at 1128 (quoting Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697 n. 4 (8th Cir. 2003)), and (b) "materials that are part of the public record or do not contradict the complaint.'" Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 931 (8th Cir. 2012) (quoting Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999). Thus, the court may "consider matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint whose authenticity is unquestioned;' without converting the motion into one for summary judgment." Miller, 688 F.3d at 931 n. 3 (quoting 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed. 2004)).[5]

Finally, when a complaint does not state a claim for relief that is plausible on its face, the court must consider whether it is appropriate to grant the pleader an opportunity to replead. The rules of procedure permit a party to respond to a motion to dismiss by amending the challenged pleading "as a matter of course" within twenty-one days. See Fed.R.Civ.P. 15(a)(1). Thus, when a motion to dismiss highlights deficiencies in a pleading that can be cured by amendment, the pleader has an automatic opportunity to do so. When the pleader fails to take advantage of this opportunity, the question of whether to permit an amendment depends on considerations that include "whether the pleader chose to stand on its original pleadings in the face of a motion to dismiss that identified the very deficiency upon which the court dismissed the complaint; reluctance to allow a pleader to change legal theories after a prior dismissal; whether the post-dismissal amendment suffers from the same legal or other deficiencies as the dismissed pleading; and whether the post-dismissal amendment is otherwise futile." Meighan v. TransGuard Ins. Co. of Am., Inc., 978 F.Supp.2d 974, 982 (N.D. Iowa 2013).

IV. ANALYSIS

Defendants raise four arguments:

a. Nunley cannot prosecute civil claims on behalf of her child.

b. The State of Iowa is not a "person" susceptible to suit under 42 U.S.C. § 1983 and is immune from suit under the Eleventh Amendment to the United States Constitution.

c. This Court does not possess supplemental authority to adjudicate any state tort claims. Even if this Court possessed such authority, any such claim would be precluded by Iowa Code Section 669.

d. Counts I, II, IV, V, VI and VII should be dismissed for failing to state a claim.

I will address each separately below.

A. Can Nunley Bring Claims on Behalf of Her Minor Child?

In her complaint, Nunley lists herself and TJN, her minor child, as plaintiffs in this suit. Doc. No. 4 at 2. Defendants allege a pro se plaintiff who is not an attorney cannot litigate claims on behalf of his or her child and point out that Nunley is not listed in a database of Iowa's licensed attorneys. Defendants also note that is not entirely clear from Nunley's complaint which claims she raises on behalf of ...

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